Heredia v. CCI

Filing 20

ORDER DISMISSING 15 FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 6/20/2017. Second Amended Complaint due within twenty-one (21) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON AUGUSTINE HEREDIA, Plaintiff, 12 ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND v. 13 14 Case No. 1:16-cv-00788-JLT (PC) (Doc. 15) CCI, Defendant. 15 21-DAY DEADLINE 16 17 Plaintiff brought this action under 42 U.S.C. § 1983 for violation of his rights when he 18 was attacked by another inmate while he was on the phone. Because he fails to link any of the 19 defendants to his factual allegations, the First Amended Complaint is DISMISSED and Plaintiff 20 is granted one last opportunity to file an amended complaint to address the deficiencies. 21 A. 22 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 26 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 27 § 1915(e)(2)(B)(i)-(iii). 28 /// 1 1 B. 2 Plaintiff complains of an incident that occurred at California Correctional Institute Summary of Plaintiff=s Complaint 3 (“CCI”) in Tehachapi, California and now names the following defendants: CCI Warden Kim 4 Holland; Associate Warden T. Haak; Captain Dave Crounse; Lieutenant Luis Machado; Sergeant 5 D. Bonnfil; Roger Groves, CDW; Sharon McKay, ERO: Karen Dugan-Berry, LRA: Lieutenant S. 6 Archuleta; CCI Jane Doe; and CCII Jane Doe. 7 Plaintiff alleges that he was using the phone at his assigned time when he was attacked by 8 a “level 4 inmate.” Plaintiff ended up being shot twice by the tower officer with a “block gun” 9 and sprayed with 2 cans of pepper-spray during the incident. Plaintiff alleges that he was taken 10 out of a side door and dragged across the yard where he was kicked and yelled at by “C/O’s.” 11 The C/Os picked him up and pushed him down and put him in the program office cage, stripped 12 naked. Plaintiff was “questioned by staff” and the nurse told Plaintiff that the inmate who 13 attacked him was drunk. Plaintiff was taken to the A Yard SHU that night and could not see at all 14 due to the pepper spray. He also could not use his left leg because of being shot. Plaintiff alleges 15 he was not given medical attention for two days and wore “paper underwear for 15 days, no 16 shower.” Plaintiff alleges he was Level II and if he had been housed in the correct housing the 17 incident would not have happened. Plaintiff alleges that he did not belong on the Level 3 yard 18 and that “Jane Doe custody counselor knew my custody level ‘tags’ were placed on my cell 19 door.” “Jane Doe Case Records Manager CCI knew” Plaintiff was not placed in the correct 20 housing unit. “All other staff” allegedly put Plaintiff’s “life in harms way.” Plaintiff seeks 21 monetary damages and requests the “115 write up” and everything about this incident be removed 22 from his C-File. 23 Plaintiff has not stated any cognizable claims as he fails to link any of the individuals 24 named as defendants to his factual allegations. However, Plaintiff may be able to correct the 25 deficiencies in his pleading. Thus, he is being given the pleading requirements, the legal 26 standards for claims he has identified, and ONE LAST OPPORTUNITY to amend his pleading. 27 28 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 2 1 "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited 2 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 3 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain 4 statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). 5 "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 6 the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. 7 Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a 8 cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 9 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 10 Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is 11 plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 12 allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. 13 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 14 While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft, 15 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 16 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 17 However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze 18 v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may 19 not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit 20 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 21 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal- 22 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 23 omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 24 “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 25 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. 26 If he chooses to file a first amended complaint, Plaintiff should make it as concise as 27 possible in twenty-five pages or less. He should merely state which of his constitutional rights he 28 feels were violated by each Defendant and its factual basis. 3 1 2 2. Linkage Requirement The Civil Rights Act (42 U.S.C. ' 1983) requires that there be an actual connection or link 3 between the actions of the defendants and the deprivation alleged to have been suffered by 4 Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 5 U.S. 362 (1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation 6 of a constitutional right, within the meaning of section 1983, if he does an affirmative act, 7 participates in another=s affirmative acts or omits to perform an act which he is legally required to 8 do that causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 9 (9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each 10 named defendant with some affirmative act or omission that demonstrates a violation of 11 Plaintiff=s federal rights. 12 Plaintiff fails to link any individual defendants to any of his factual allegations. Plaintiff 13 must clearly state which individuals he feels are responsible for each violation of his 14 constitutional rights and the factual basis for each of his claims against a specific individual 15 defendant. Plaintiff’s complaint must put each defendant on notice of Plaintiff=s claims against 16 him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 17 18 19 D. Legal Standards 1. Eighth Amendment -- Failure to Protect "The treatment a prisoner receives in prison and the conditions under which he is confined 20 are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832, 21 114 S.Ct. 1970 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993)). Prison officials 22 have a duty "to take reasonable measures to guarantee the safety of inmates, which has been 23 interpreted to include a duty to protect prisoners." Labatad v. Corrections Corp. of America, 714 24 F.3d 1155, 1160 (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 25 (9th Cir. 2005)). 26 To establish a violation of this duty, the prisoner must "show that the officials acted with 27 deliberate indifference to threat of serious harm or injury to an inmate." Labatad, at 1160 (citing 28 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective 4 1 2 and subjective components. First, objectively, the alleged deprivation must be "sufficiently serious" and where a 3 failure to prevent harm is alleged, "the inmate must show that he is incarcerated under conditions 4 posing a substantial risk of serious harm." Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 5 349, 101 S.Ct. 2392 (1981). Second, subjectively, the prison official must "know of and 6 disregard an excessive risk to inmate health or safety." Id. at 837; Anderson v. County of Kern, 7 45 F.3d 1310, 1313 (9th Cir. 1995). A prison official must "be aware of facts from which the 8 inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the 9 inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Liability may follow only if a prison 10 official "knows that inmates face a substantial risk of serious harm and disregards that risk by 11 failing to take reasonable measures to abate it." Id. at 847, 114 S.Ct. 1970. 12 Plaintiff’s allegations fail to show that any of the individuals he named as defendants 13 knew that he was in the wrong housing unit, and the factual basis showing their knowledge that 14 he was improperly housed. Plaintiff’s allegations that all of the named defendants knew he had 15 been placed in the wrong housing unit are conclusory and need not be accepted as true. Iqbal, 16 556 U.S. at 678. 17 2. Eighth Amendment -- Medical Care 18 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 19 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 20 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 21 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 22 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 23 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 24 Cir.1997) (en banc)) 25 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 26 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 27 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 28 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 5 1 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 2 (quotation marks omitted)). 3 As to the first prong, indications of a serious medical need “include the existence of an 4 injury that a reasonable doctor or patient would find important and worthy of comment or 5 treatment; the presence of a medical condition that significantly affects an individual’s daily 6 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 7 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 8 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Plaintiff fails to allege what his 9 medical condition was that that he believes constituted a serious medical need. 10 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 11 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 12 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 13 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 14 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 15 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 16 prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 17 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 18 substantial; however, such would provide additional support for the inmate’s claim that the 19 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 20 F.2d at 1060. 21 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 22 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 23 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 24 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 25 official should have been aware of the risk, but was not, then the official has not violated the 26 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 27 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 28 Plaintiff must first allege facts that show he had a condition which constituted a serious 6 1 medical need. Then he must allege facts to show that each individual defendant he feels acted 2 deliberately indifferent to his condition, knew that he suffered from the condition and 3 intentionally chose action contrary to his medical requirements. 4 3. Access to Courts 5 Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 6 518 U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Phillips v. 7 Hust, 588 F.3d 652, 655 (9th Cir. 2009). Claims for denial of access to the courts may arise from 8 the frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking access 9 claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). 10 11 Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). In either instance, “the injury requirement is not satisfied by just any type of frustrated 12 legal claim.” Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right “to 13 transform themselves into litigating engines capable of filing everything from shareholder 14 derivative actions to slip-and-fall claims.” Id. at 355. Rather, the type of legal claim protected is 15 limited to direct criminal appeals, habeas petitions, and civil rights actions such as those brought 16 under section 1983 to vindicate basic constitutional rights. Id. at 354 (quotations and citations 17 omitted). “Impairment of any other litigating capacity is simply one of the incidental (and 18 perfectly constitutional) consequences of conviction and incarceration.” Id. at 355 (emphasis in 19 original). 20 To assert a forward-looking access claim, the non-frivolous “underlying cause of action 21 and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice 22 to a defendant.” Christopher v. Harbury, 536 U.S. 403, 416 (2002). To state such a claim, the 23 plaintiff must describe this “predicate claim . . . well enough to apply the ‘non-frivolous’ test and 24 to show that the ‘arguable’ nature of the underlying claim is more than hope.” Id. It is not 25 enough for Plaintiff merely to conclude that the claim was non-frivolous. The complaint should 26 instead “state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just 27 as if it were being independently pursued, and a like plain statement should describe any remedy 28 available under the access claim and presently unique to it.” Id. at 417-418. 7 1 Moreover, when a prisoner asserts that he was denied access to the courts and seeks a 2 remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non- 3 frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a 4 remedy that may be awarded as recompense but that is not otherwise available in a future suit. 5 Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 U.S. at 413-414, 6 overruled on other grounds, Hust v. Phillips, 555 U.S. 1150, 129 S.Ct. 1036 (2009) (reversed and 7 remanded Phillips v. Hust, on qualified immunity grounds without change or discussion of 8 elements of access to court claims)). Plaintiff fails to state any allegations to even suggest that he 9 has lost an underlying protected claim because of the actions he alleges in this case, let alone link 10 11 12 any such allegations to a specific individual named as a defendant in this action. 4. Supervisory Liability Plaintiff was previously informed that supervisory personnel are generally not liable under 13 section 1983 for the actions of their employees under a theory of respondeat superior and, 14 therefore, when a named defendant holds a supervisory position, the causal link between him and 15 the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 16 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 17 U.S. 941 (1979). To state a claim for relief under section 1983 based on a theory of supervisory 18 liability, Plaintiff must allege some facts that would support a claim that supervisory defendants 19 either: personally participated in the alleged deprivation of constitutional rights; knew of the 20 violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient 21 that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the 22 constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 23 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Under section 1983, liability may 24 not be imposed on supervisory personnel for the actions of their employees under a theory of 25 respondeat superior. Iqbal, 556 U.S. at 677. "In a § 1983 suit or a Bivens action - where masters 26 do not answer for the torts of their servants - the term 'supervisory liability' is a misnomer." Id. 27 Knowledge and acquiescence of a subordinate's misconduct is insufficient to establish liability; 28 each government official is only liable for his or her own misconduct. Id. 8 1 A>[B]are assertions . . . amount[ing] to nothing more than a Aformulaic recitation of the 2 elements@ of a constitutional discrimination claim,= for the purposes of ruling on a motion to 3 dismiss [and thus also for screening purposes], are not entitled to an assumption of truth.@ Moss, 4 572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). ASuch 5 allegations are not to be discounted because they are >unrealistic or nonsensical,= but rather 6 because they do nothing more than state a legal conclusion B even if that conclusion is cast in the 7 form of a factual allegation.@ Id. Thus, any allegations that supervisory personnel such as a 8 Warden is somehow liable because of the acts of those under his or her supervision does not state 9 a cognizable claim. 10 Despite previously being given these standards for claims against supervisory personnel, 11 Plaintiff fails to state anything other than legal conclusions against any of the supervisory 12 defendants named in this action. 13 E. 14 For the reasons set forth above, Plaintiff's First Amended Complaint is dismissed and he is CONCLUSION 15 granted ONE FINAL OPPORTUNITY to amend his pleading by filing a second amended 16 complaint within 21 days. If Plaintiff needs an extension of time to comply with this order, 17 Plaintiff shall file a motion seeking an extension of time no later than 21 days from the date of 18 service of this order. 19 Plaintiff must demonstrate in any second amended complaint how the conditions 20 complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 21 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific terms how each 22 named defendant is involved. There can be no liability under section 1983 unless there is some 23 affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo 24 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 25 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 26 Plaintiff's second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short 27 and plain statement must "give the defendant fair notice of what the . . . claim is and the grounds 28 upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 9 1 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 2 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 3 (2007) (citations omitted). 4 Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 5 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 6 2012) (en banc), and must be "complete in itself without reference to the prior or superceded 7 pleading," Local Rule 220. 8 The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 9 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 10 may not change the nature of this suit by adding new, unrelated claims in his second amended 11 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 12 Based on the foregoing, the Court ORDERS: 13 1. Plaintiff's First Amended Complaint is dismissed, with leave to amend; 14 2. The Clerk's Office shall send Plaintiff a civil rights complaint form; and 15 3. Within 21 days from the date of service of this order, Plaintiff shall file a second 16 amended complaint curing the deficiencies identified by the Court in this order, or 17 a notice of voluntary dismissal. 18 If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a 19 court order and for failure to state a claim. 20 21 22 23 IT IS SO ORDERED. Dated: June 20, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 10

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